Crying Wolf in the War Against Terror

"Never mind," the feds now say to Yaser Esam Hamdi, the alleged enemy combatant whose case was decided in June by the U.S. Supreme Court. Never mind that we threw you into the brig and then fought like wildcats to deprive you of fundamental constitutional rights. Never mind that we told federal judges that you were a dangerous enemy of the United States.

Now, it seems, the government is negotiating with Hamdi's attorneys for his release from confinement. According to reports, Hamdi would renounce his U.S. citizenship, move to Saudi Arabia and accept some travel restrictions, as well as some monitoring by Saudi officials, in exchange for his freedom. In addition, he may have to agree not to file a civil rights lawsuit against the federal government.

If all Hamdi has to worry about is going forward into his new life of freedom, it would be a remarkable turnaround for a man who for years now the government has sworn is a terrorist. It would be a shocking admission from the government that there is not now, and probably never has been, a viable criminal case against Hamdi. And it would cause a stunning and long-lasting loss of credibility for the representations that government lawyers and military officials make in these sorts of terror law cases.

The Justice Department is spinning the talks between Hamdi's attorneys and federal lawyers as a routine exercise in the release of prisoners in wartime. But it is fairly clear that such talks did not take place before the Supreme Court rode to Hamdi's rescue a couple of months ago by requiring his captors to give him some rights.

If Hamdi is such a minor threat today that he can go back to the Middle East without a trial or any other proceeding, it's hard not to wonder whether the government has been crying wolf all these years.

The government, remember, told a federal appeals panel in June 2002 that "Hamdi's background and experience, particularly in the Middle East, Afghanistan and Pakistan, suggest considerable knowledge of Taliban and Al Qaeda training and operations." Government lawyers told the Supreme Court itself as late as April that Hamdi's continued detention (without charges) was necessary and appropriate. Why? Because, the feds said, Hamdi was captured when his Taliban unit surrendered to Northern Alliance forces and, at the time of his capture, Hamdi had an AK-47 rifle.